Is a judge required to recuse himself or herself from
contested matters in which a party is represented by an attorney who was
previously a member of a fraternal organization of which the judge was also a
member and who, as a president of that local organization, signed the judge’s
daughter’s application for a scholarship to an affiliated national organization,
thereby verifying the legitimacy of the application?

ANSWER

No.

ISSUE II

Is a judge required to recuse himself or herself from
contested matters in which a party is represented by an attorney whom the judge
has appointed as a supplemental court commissioner under Wis. Stat. § 757.675?

ANSWER

No.By itself, the fact that the attorney
appearing before a judge has been appointed as a supplemental court
commissioner by the judge does not require recusal.However, some supplemental court commissioner
appointments may involve circumstances that do require recusal.

FACTS

Facts relating to Issue I:The
judge and an attorney were both members of a local fraternal organization
during some unspecified period of time in the past.During this time period, and while the
attorney was the president of the local organization, the judge’s daughter
applied for a scholarship from an affiliated national organization.As president of the local organization, the
attorney signed the judge’s daughter’s application, a requirement that provides
verification to the national organization that the application is “legitimate.”The judge’s daughter subsequently was awarded
$1,000 by the national organization.The
attorney is no longer a member of the local organization, although he remains a
member of the national organization.Occasionally, the attorney appears in the judge’s court.

Facts relating to Issue II:The judge has appointed two attorneys as supplemental court
commissioners under the authority granted in Wis.
Stat. § 757.675.Pursuant to
the statute, the judge may discharge these attorneys as supplemental court
commissioners “at will and without cause.” Wis.
Stat. § 757.675(1).The
authority of supplemental court commissioners is limited and is specified in § 757.675(2)-(5).Under these provisions, a supplemental court
commissioner may assist the judge in performing various duties, but no such
relationship exists between the requesting judge and his supplemental court
commissioners here.Occasionally, one of
these attorneys appears in the judge’s court.

DISCUSSION

The requesting judge correctly
recognizes that the governing code provision is SCR 60.04(4), but the phrasing
of the judge’s questions (including whether disclosure
is required) suggest some confusion regarding SCR 60.04(4) and its interaction
with the waiver provision, SCR 60.04(6).Accordingly, we begin with a brief description of these two code
provisions and then proceed to answer the two pertinent questions as we have reframed
them.

SCR 60.04(4) defines circumstances
in which a judge must recuse.It
contains a list of particular circumstances which require recusal and, pertinent
here, more generally provides:

[A] judge shall recuse himself or
herself in a proceeding ... when reasonable, well-informed persons
knowledgeable about judicial ethics standards and the justice system and aware
of the facts and circumstances the judge knows or reasonably should know would
reasonably question the judge’s ability to be impartial ….

If recusal is required under SCR 60.04(4), the judge must
either recuse or obtain a waiver of recusal under the procedure set forth in
SCR 60.04(6).It is this waiver
provision that addresses disclosure; under it a judge “may disclose” if the
judge chooses to give the parties an opportunity to waive recusal.Specifically, SCR 60.04(6) provides:

A judge required
to recuse himself or herself under sub. (4) may disclose on the record the
basis of the judge’s recusal and may ask the parties and their lawyers to
consider, out of the presence of the judge, whether to waive recusal.If, following disclosure of any basis for
recusal other than personal bias or prejudice concerning a party, the parties
and lawyers, without participation by the judge, all agree that the judge
should not be required to recuse himself or herself and the judge is then
willing to participate, the judge may participate in the proceeding.The agreement shall be incorporated in the
record of the proceeding.

Thus, a judge is never required to disclose circumstances that
may require recusal.Rather, disclosure
is an option for a judge who has determined that he or she must recuse, absent
a waiver, and who chooses to inquire about a waiver under SCR 60.04(6).It follows that a question framed in terms of
whether a judge must disclose misses
the mark.

Accordingly, we interpret the gist
of the judge’s inquiry here to be whether recusal is required under either of
the fact situations presented.As to
each circumstance, that question is dispositive.If the judge is not required to recuse, the
judge need not disclose.If the judge is
required to recuse, the judge likewise need not disclose, but may choose to do
so under the waiver procedure in SCR 60.04(6).

Before moving on, we observe that a
comment to SCR 60.04(4) states that “[a] judge should disclose ... information that
... the parties or their lawyers might consider relevant to the question of
recusal, even if the judge believes there is no real basis for recusal.”This comment is a recommendation, not a
requirement.We confine this opinion to
answering the questions asked in light of judicial conduct code requirements.

Issue I: Is a
judge required to recuse himself or herself from contested matters in which a
party is represented by an attorney who was previously a member of a fraternal
organization of which the judge was also a member and who, as a president of
that local organization, signed the judge’s daughter’s application for a
scholarship to an affiliated national organization, thereby verifying the legitimacy
of the application?We answer this
question no for the following reasons.

Whether recusal is required under
SCR 60.04(4) is determined by reference to a “well-informed persons”
standard.The question is not whether a
reasonable member of the public would question the judge’s impartiality.Rather, the question is whether “reasonable,
well-informed persons knowledgeable about judicial ethics standards and the
justice system ... would reasonably question the judge’s ability to be
impartial.”[1]We conclude that “well-informed persons”
under this standard would not reasonably question the judge’s ability to be
impartial in the circumstances presented.

The fact that the attorney signed
something verifying that the judge’s daughter’s application was legitimate does
not show that the attorney assisted in obtaining the scholarship money in any
way that suggests a reason to question the judge’s impartiality.Rather, as described, it appears the attorney
did what any president of this organization would do for any member—he simply and
with little effort signed the application, thereby verifying that the daughter was
qualified by virtue of a qualifying affiliation with the organization.

What remains is the fact that the
judge and attorney, during some prior unspecified time period, were both members
of a fraternal organization.By itself,
this fact would not lead “well-informed persons” to reasonably doubt the
judge’s ability to be impartial.Obviously, two persons can be members of the same organization without
having a close personal relationship.Furthermore, a person “knowledgeable about ... the justice system” would
know that judges routinely and impartially preside over cases involving persons
with whom the judge has a connection through common membership in an
organization.A common example of this
is a judge and attorney who both belong to a county bar association.

Issue II:Is a judge required to recuse himself or
herself from contested matters in which a party is represented by an attorney
whom the judge has appointed as a supplemental court commissioner under Wis. Stat. § 757.675?We answer this question no, with
qualifications.

Again, we
are asked whether recusal is required under the “well-informed persons”
standard.A well-informed person
“knowledgeable about ... the justice system” would know the following:that judges appoint supplemental court
commissioners under the authority granted in Wis.
Stat. § 757.675; that a judge appoints a supplemental court
commissioner subject to the approval of a majority of judges in the judge’s
county and may discharge such commissioners at will and without cause; that the
statute lists several powers that may be exercised by supplemental court
commissioners, such as officiating at weddings, issuing subpoenas to compel the
attendance of witnesses, issuing various writs, and conducting hearings
addressing specified debtor matters; that judges use a standard form to appoint
supplemental court commissioners and on this form the judges specify the
particular statutory powers granted the individual commissioner; that most supplemental
court commissioners do not use statutory powers to assist the appointing judge;
that some supplemental court commissioners obtain income from the exercise of
some statutory powers, most notably the power to officiate at weddings under § 757.675(2)(a)
and the power to conduct supplemental debtor hearings under § 757.675(2)(h);
that appointing judges do not benefit from and do not typically monitor any
income-earning activities of their supplemental court commissioners; that
judges often appoint supplemental court commissioners who are not close
personal friends; and that most supplemental court commissioners derive no
substantial benefit from the appointment.

It follows
that the fact that an attorney appearing before a judge is one of the judge’s supplemental
court commissioners would not, by itself, cause “well-informed persons” to
reasonably question the judge’s ability to be impartial.If, however, the judge’s appointment involves
a more significant relationship than is suggested by the typical factors we
list above, recusal may be required.

It bears
repeating that we address only whether recusal is required under the limited facts presented in the question before
us.We do not, and as a practical matter
could not, meaningfully address the variety of situations in which additional
factors would lead to the conclusion that a supplemental court commissioner
appointment requires recusal.

CONCLUSION

The
Committee concludes that a judge is not required to recuse himself or herself
from a contested matter in which a party is represented by an attorney who was
previously a member of a fraternal organization of which the judge was also a
member and who, as a president of that local organization, signed the judge’s
daughter’s application for a scholarship to an affiliated national
organization, thereby verifying the legitimacy of the application.We further conclude that a judge is not
required to recuse himself or herself from a contested matter in which a party
is represented by an attorney whom the judge has appointed as a supplemental
court commissioner because such an appointment, by itself, would not cause
“well-informed persons” to reasonably question the judge’s ability to be
impartial.

APPLICABILITY

This opinion is advisory only.It is based on the specific facts and
questions submitted by the petitioner to the Judicial Conduct Advisory
Committee and is limited to questions arising under the Supreme Court Rules,
Chapter 60, Code of Judicial Conduct. This opinion is not binding on the Wisconsin
Judicial Commission or the Supreme Court in the exercise of their judicial
disciplinary responsibilities.This
opinion does not purport to address provisions of the Code of Ethics for Public
Officials and Employees, Subchapter III of Ch. 19 of the statutes.

I hereby certify that this is Formal Opinion No. 08-2 issued
by the Judicial Conduct Advisory Committee for the State of Wisconsin this 30th day of December,
2008.

/s/
George S. Curry

____________________________________

Honorable
George S. Curry

Chair

[1] In a 2003 advisory opinion, Opinion 03-1,
we also addressed recusal questions.There, as here, we relied on the “well-informed persons” standard in SCR
60.04(4).Unfortunately, we also looked
to SCR 60.03(1), which, we explained, “sets the standards for dealing with the public’s perception of the integrity and
impartiality of the judiciary.”Opinion
03-1 at 2 (emphasis added).Our reliance
on SCR 60.03(1) was misplaced because that provision is a general provision
requiring judges to avoid improprieties and the appearance of improprieties,
whereas the specific topic of recusals is governed by SCR 60.04(4) and the
narrower “well-informed persons” standard in that provision.Thus, for example, we erred when we advised judges
that they must take into consideration “the appearance to the general public”
when determining whether they must recuse.Opinion 03-1 at 3.

We emphasize that we stand by
our conclusions in Opinion 03-1 regarding a judge’s need to recuse in matters
involving a former campaign manager and former campaign opponents and
supporters.We have now concluded,
however, that we should not have relied on SCR 60.03(1) in answering the
judge’s recusal questions.